August 9, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF B.A.O. SVP 484-08.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-484-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2011
Before Judges C.L. Miniman and LeWinn.
B.A.O. appeals from the May 30, 2009 judgment civilly committing him pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). The gravamen of his argument on appeal is that the judge improperly relied upon hearsay evidence, including the opinions of non-testifying experts, in concluding that he met the standards for commitment under the SVPA. We disagree and affirm.
Appellant was indicted on two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). Pursuant to a negotiated plea agreement, he pled guilty to one count of first-degree aggravated sexual assault and one count of second-degree sexual assault. The victims were his nephew and niece whom he sexually abused over a "several-year period [starting] when [the nephew] was four years old and [when the niece] was eight [to] twelve years old." On March 28, 2003, having been evaluated at the Adult Diagnostic Treatment Center (ADTC) pursuant to N.J.S.A. 2C:47-1, and diagnosed as a repetitive and compulsive sexual offender, he was sentenced to an aggregate term of ten years at the ADTC; he is also subject to the conditions imposed under Megan's Law, N.J.S.A. 2C:7-1 to -23.
On February 15, 2008, the State petitioned to have appellant civilly committed to the Special Treatment Unit (STU) under the SVPA. We summarize the pertinent evidence from the commitment hearing held on March 24 and April 17, 2009. The State presented the testimony of Dr. Brian Friedman, a psychologist, and Dr. Pogos Voskanian, a psychiatrist, both of whom personally interviewed appellant and reviewed numerous documents in his record.
Dr. Friedman testified that he reviewed all of appellant's prior evaluations as well as his "offending history." He "notice[d]" diagnoses in those evaluations, but "d[id] not rely upon others' diagnoses in any way." All the diagnoses in his assessment were his own, "unless . . . indicate[d] . . . parenthetically, by history, which [was] just a reference that someone else had diagnosed his condition." The judge admitted Friedman's report into evidence "with the stipulation that any inadmissible hearsay [would] not be accepted."
Friedman reviewed all of the charges in appellant's indictment, noting that he gave more weight to the two that resulted in convictions, but considered the "other allegations . . . for possible consistency or inconsistency with [the] . . . officially documented offenses on the record." He also reviewed appellant's pre-sentence report and the ADTC evaluation, both of which appellant and his criminal defense attorney had reviewed, and accepted as accurate, at sentencing.
As a result of his interview, Friedman determined that appellant "has cognitive limitations[,]" with "[c]urrent testing suggest[ing] an I.Q. . . . around [sixty]." Based upon appellant's "self-reported extensive history of being victimized sexually," Friedman diagnosed him with Post Traumatic Stress Disorder (PTSD).
Friedman stated that during the interview, appellant tended "to minimize the extent of his abuse of the children." Regarding "all of the . . . allegations including the two that led to indictments [sic], he denied any inappropriate sexual behavior with those children." Appellant told Friedman that he had "some attraction to the children" in the past but that "he doesn't feel that any longer." Friedman opined that statement was not "accurate . . . given the . . . pervasiveness of his offending, and . . . how compulsive the offending was."
Based on his review of appellant's "offending history," Friedman found the "most obvious" concern to be his "arousal toward prepubescent children." He was also concerned that appellant engaged in a variety of sexual behaviors, such as fondling, penetration and masturbation, which led him to conclude that "there are may different ways that [appellant] could potentially reoffend in the future."
Friedman diagnosed appellant with pedophilia, which "clearly predisposes him to committing . . . future acts of sexual violence." The "strength" of appellant's "pedophilic arousal" is demonstrated by his expression of disgust about his conduct but his inability to control it. Friedman opined that appellant "is unlikely to ever gain the sufficient internal controls to exclusively prevent reoffense."
Friedman acknowledged that his diagnosis of major depressive disorder with psychotic features was "the one diagnosis that [he] assigned based purely on the fact that someone else assigned it." He believed the diagnosis was "relevant" to appellant's history when being assessed for future treatment.
On the Static 99 risk assessment scale, Friedman rated appellant at four, which "corresponds with the moderate to high-risk category." If "adequately monitored" in the community, appellant "may . . . not" immediately reoffend, but "over a number of years," Friedman opined, "the chances are extremely high that he would reoffend."
Friedman described appellant's proposed discharge plan --to live with his brother at the YMCA -- as "very poor." This plan "speaks to [appellant's] lack of appreciation for his own risk, as well as high-risk situations." Friedman opined that "external controls over [appellant's] behavior" are likely to be "a long-term, if not life-long process." A "less secure setting that is still controlled, and supervised, and monitored, and access to children is restricted, . . . would likely suffice in the future[,] . . . [but] not . . . at this point in time."
Dr. Voskanian's assessments and opinions were consistent with Friedman's. He reviewed the same documents, interviewed appellant, and reached the same diagnoses and risk assessments. During the interview, appellant admitted molesting the two victims involved in his convictions, but was "vague . . . regarding . . . how often and starting [at] what age." The length of time during which appellant's conduct continued "indicates arousal to children and chronicity of his sexual disorder which is pedophilia." Based on his interview, Voskanian concluded that appellant's "knowledge of his sexually related issues and treatment components . . . [is] rudimentary."
In addition to pedophilia, Voskanian diagnosed appellant with paraphilia NOS, based on the "degree of violence to his offenses and his own statement that he displaced his anger at his victims," and personality disorder NOS based on his "issues with identity formation as a person." Voskanian assessed appellant to be "high risk" for reoffending, based on his "entire history," which included "eight years of continuously molesting children."
On April 30, 2009, the judge rendered a decision from the bench. After reviewing the testimony and documentary evidence, the judge concluded that the State had proved by clear and convincing evidence that appellant met the standards for civil commitment under the SVPA: (1) he was convicted of a sexually violent offense; (2) the unrefuted expert testimony established that he suffered from a mental abnormality and has "serious difficulty controlling his violent behavior"; (3) appellant proposed "no plans for external controls or support in the community"; and (4) the experts opined that "if released to the community it is high[ly] likely that he will reoffend in the . . . reasonably foreseeable future."*fn1 Therefore, the judge ordered appellant committed to the STU, with a review hearing in one year.
Appellant now challenges the bases on which Drs. Friedman and Voskanian reached their conclusions and opinions. Appellant claims the doctors relied on "excessive amounts of hearsay and unproven allegations" as well as "the opinions of non-testifying experts." Because we are satisfied that both doctors properly relied upon information that is expressly deemed admissible in these proceedings, we conclude appellant's arguments are without merit.
We note, initially, that our scope of review of SVPA commitment orders is "extremely narrow"; we affirm such orders unless the record reveals a "clear abuse of discretion". In Re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (internal quotation marks omitted), certif. denied, 177 N.J. 490 (2003). Where as here, the challenge is premised upon a claim of erroneous evidentiary rulings, we are particularly deferential in assessing whether the judge abused his discretion. State v. Brown, 170 N.J. 138, 147 (2001); see also In Re Commitment of R.S., 339 N.J. Super. 507, 531 (App. Div. 2001) ("[g]enerally, appellate courts apply an abuse of discretion standard to the evidentiary rulings of a trial court"), aff'd, 173 N.J. 134 (2002). With those standards in mind, we turn to appellant's contentions.
As a general matter, a trial judge in an SVPA commitment hearing may consider hearsay in order to assess the credibility of expert testimony, if the expert has based his opinion on such evidence and the evidence is "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). An expert is permitted to rely upon hearsay information in forming an opinion with respect to an individual's mental condition. In Re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. Super. 312 (2004). The judge may not consider such hearsay statements as substantive evidence unless the statements come within an exception to the hearsay rule. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004); A.X.D., supra, 370 N.J. Super. at 202. We are satisfied from our review of the record that the judge adhered to these principles in rendering his decision in this case.
The pertinent query is whether "the opinion ultimately rendered . . . is that of the witness based on his . . . own evaluation of the committee, prior offenses, and objective test data." In Re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div.), certif. denied, 185 N.J. 393 (2005). Here, neither Friedman nor Voskanian "simply agree[d] with the opinions of other, non-testifying examiners." Id. at 489.
This is simply not a case in which "[t]he only bridge to the present day was the ADTC hearsay," which led us to reverse and order a new hearing in G.G.N., supra, 372 N.J. Super. at 58, 60, upon which appellant relies. Here, appellant presented no history of "positive treatment," id. at 59, to counterbalance the weight to be accorded to his underlying offenses. To the contrary, both the ADTC evaluation and the doctors' own assessments based upon their interviews with appellant established his lack of progress in addressing his issues.
In sum, we find no error in the judge's admission into evidence of the various documents upon which the experts relied in the course of their evaluations. We are satisfied the experts properly considered such documents in reaching their own independent conclusions with respect to appellant's diagnoses and risk assessments. The State presented clear and convincing evidence that appellant met the definition of a sexually violent predator under N.J.S.A. 30:4-27.26. As such, he was subject to commitment under the SVPA.*fn2